Watada lawyer frustrated as judge narrows defense

Five men, two women to sit on court-martial jury

FORT LEWIS -- First Lt. Ehren Watada's initial words in a small, wood-paneled Army court Monday were a series of calm and steadfast "Yes, sirs" to the military judge overseeing his court-martial.

Outside the base, from hundreds of supporters, the answer was a resounding "no" to the war in Iraq in which Watada refuses to fight and to the Army's prosecution of him.

A military court-martial convened for Watada, 28, the only known U.S. military officer to publicly refuse to go to Iraq. Watada has said he is not a conscientious objector to war and would serve in Afghanistan. He says the Iraq war is illegal and that he is duty-bound to refuse illegal orders. And he has pleaded not guilty to the charges against him.

The court-martial, which could last through Thursday, has drawn national attention. Peace activists mustered in Tacoma over the weekend in preparation for a week of peaceful vigils outside the base.

Watada's first day saw a military panel of officers selected, after cross-examination, from a pool of Watada's peers. Two women and five men will sit in judgment of him.

It also was a day of frustration for Watada's side. The military judge, Lt. Col. John Head, sometimes drawing heated arguments from Watada's civilian defense lawyer, Eric Seitz, narrowly focused the hearings, barring defense witnesses from testifying about the legality of the war in Iraq.

At one point, Seitz was exasperated as Head allowed prosecutors to retain an expert witness at government expense but would not do the same for Watada. "The government can call who they want, and we can't call who we need?" Seitz asked. "What's good for the goose is good for the gander. I learned that in law school, if not in nursery school," he said.

Head said he would allow the witness, a former military officer who has taught constitutional law at West Point, but at the defense team's expense.

Seitz declined. Instead, Watada now is expected to take the stand in his own defense Wednesday, buttressed by a former commanding officer as a character witness. Prosecutors are expected to call only three witnesses today after opening arguments.

At a news conference after the day's proceedings, Seitz said the atmosphere in the courtroom was "tense because the judge is taking every opportunity to constrict what we would like to say. It is a typical military case, where the military doesn't want to hear what it doesn't want you to say."

Seitz said a favorable outcome would be if Watada received a reduced punishment that "recognizes the integrity of his actions."

If convicted of missing movement with his unit to Iraq and conduct unbecoming of an officer for speaking out against the war, he could be sentenced to up to four years.

Seitz said that last year before Watada went public with his refusal to go to war, the lieutenant offered to accept punishment of six months incarceration or dismissal from the military, but prosecutors preferred to seek a stiffer sentence.

Prosecutors are barred from speaking to reporters.

The court-martial has drawn international attention, with Japanese journalists among the many covering the case. The high-profile court-martial has galvanized peace activists around the country. Amnesty International has weighed in, saying a guilty verdict would be "a violation of internationally recognized human rights."

The trial is public, but Watada's case is being heard on a closed Army post, requiring security and behavior agreements from those wishing to attend. Space is tight.

Watada's family and a small group of reporters wedged into the small courtroom, only two benches deep. Reporters drew colored marbles to select who would fill the seven media spots in the courtroom.

Thirty other people, with about 20 more reporters, filled an overflow room nearby, watching a transmission from the courtroom.

In early afternoon, the officers being questioned as Watada's possible jurors expressed a range of reactions to the case. One senior officer noted a "strong reaction" to hearing that another officer was facing such serious charges.

Another said he was not bothered by an officer expressing opinions in public, as long as he is respectful. Yet another said he had just returned from Iraq when he heard of Watada's case and wondered, "Why?"

One of two women questioned as possible jurors said she thought, "Wow, I'm impressed," when she heard Watada was following through on what he said he would do.

Before the jury was chosen, Seitz several times erupted in frustration at Head. "If you are going to tie my hands and script these proceedings, we are wasting our time," Seitz said. He suggested Head might be engaged in "judicial misconduct."

"We can leave the dramatics at the courtroom door," Head said at another point.

The day began with Seitz offering several motions to strengthen his chances for a Nuremberg defense, one based upon the international conventions and military policies against unlawful orders. They grew out the Nazi war-crimes tribunals after World War II, when a common defense was "only following orders."

Head rejected the motions.

Citing legal precedents, Head ruled after a pretrial hearing last month that Watada is being tried for alleged illegal actions and that the legality of the war is not the issue.

But just outside the base's gates, the war was on trial.

More than 1,000 people gathered along Interstate 5 on the exit 119 overpass, spilling down the grassy slopes on either side and filling the sidewalks of the surrounding DuPont neighborhood.

Diana Gruenewald of Lake Forest Park stood on the side of the freeway with a sign, collecting honks and waves from passing vehicles. The protest was a way to make sure everyone's voice was heard, she said.

"I was just telling my husband -- this is such an American thing," she said. "This is how this country started, with people willing to say something that was unpopular."

The rally even garnered a brief visit from actor turned activist Sean Penn, who has been a vocal opponent to the war in Iraq.

The vast majority of the protesters were there in support of Watada, but some took the opposite stance. Music from the warring camps filled the air: A group of activists -- mostly in their 50s -- belted out Bob Dylan's "Blowin' in the Wind" on one side of the freeway while on the other side, a set of speakers blared "Have You Forgotten?" by country musician Darryl Worley.

Among the sea of signs decrying Watada's court-martial were a few with a quite different message. One called him a "weasel."

"Thank you troops! You make us proud and keep us free," read a second. Another, leaning against a folding chair, called Watada a "wimp" and a "traitor."